Through this single order I intend to decide writ petition in hand as well as W.P. No, 4549 of 2013 as common questions of law and fact are involved in both these petitions.
2. This petition has been filed by Pakistan Saraiki Party through its Provincial President Laiq Hussain Khan against the order passed by the Returning Officer dated 10.04.2013 whereby application filed by the petitioner for deferring the elections of Constituencies No, NA-155-LD-II and PP-209-LD-III, was dismissed.
3. Brief facts of the case are that Barrister Taj Muhammad Khan Langah was President of Pakistan Saraiki Party, which is a duly registered party. For the forthcoming elections to be held on 11.5.2013 Barrister Taj Muhammad Khan Langah submitted his nomination papers for Constituencies No, NA- 155-LD-II and PP-209-LD-III. He was duly nominated candidate, who unfortunately on 07.04.2013 died. After his death the petitioner Laiq Hussain Khan being Provincial President of the party moved an application before the Returning Officers of both the Constituencies for deferring the election of both the Constituencies on the basis that Barrister Taj Muhammad Khan Langah has died, therefore, a fresh date for the election of both the above said Constituencies be fixed. Through the impugned order dated 10.4.2013 the learned Returning Officer has dismissed the application on the ground that Barrister Taj Muhammad Khan Langah was a duly nominated candidate but he was not a contesting candidate at the time of his death, therefore, the election cannot be deferred.
4. Comments were called, same have been filed by the respondents, wherein they have reiterated the order passed by the learned Returning Officer.
5. Learned counsel for the .petitioner while relying upon ''Intesar Hussain Bhatti versus Vice- Chancellor, University of Punjab Lahore and others" (PLD 2008 SC 310), "Syed Nayyar Hussain Bukhari versus District Returning Officer, NA-49; Islamabad and others" (PLD 2008 SC 487), "Intesar Hussain Bhatti versus Vice Chancellor, University of Punjab Lahore and others" (PLD 2008 SC 313), "Shaikh Ali-ud-Din versus Election Tribunal, Lahore High Court, Lahore and 12 others" (2009 YLR 1930) and "Let. Gen. (R) Salahuddin Tirmizi versus Election Commission of Pakistan" (PLD 2008 SC 735) argues that even in existence of the bar contained in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 this Court has the jurisdiction to entertain the constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. While relying upon "Ghulam Mustafa Jatoi versus Additional District & Sessions Judge/Returning' Officer, N.A158, Naushero Ferozes and others" (1994 SCM R 1299) argues that the Returning Officer has no authority to drop the name of a candidate while publishing the list without hearing and giving him opportunity.
6. On the other hand, learned Law Officers as well as learned counsel for the private respondents have argued that order passed by the learned Returning Officer is absolutely in accordance with law and while relying on "Complaint of malpractices in Constitutency No, N.A.57, Sargodha-V"
(PLD 1977 Journal 164) and "Election Commission of Pakistan through its Secretary versus Javaid Hashmi and others" (PLD 1989 SC 396) stated that under Article 218(3), of the Constitution of Islamic Republic of Pakistan, 1973 it is the fundamental duty of the Election Commission of Pakistan to ensure free and fair elections, therefore, states that petitioner can approach the Election Commission of Pakistan.
7. I have considered the arguments advanced by learned counsel for the parties and have gone through the record as well as case law and provisions of the Constitution as well as Representation of People Act, 1976.
8. In accordance with the scheme of law the candidate who files his nomination papers for contest of election and if his nomination papers are accepted, he becomes a "Candidate". Under Section 2(xxvi) "validly nominated candidate" means a candidate whose nomination has been accepted and under Section 2(viii) of the Act "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature and Section 18 of the Act, ibid, reads as follows: "(1). If a contesting candidate dies before the day for taking of the poll, the Returning Officer shall, by public notice, terminate the proceedings relating to that election.
(2). Where the proceedings relating to an election have been terminated under sub-section (1), fresh proceedings shall be commenced in accordance with the provisions of this Act, as if for a new election: Provided that it shall not be necessary for the other contesting candidates to file fresh nomination papers or make a further deposit under Section 13."
It is clearly mentioned in this section that "if a contesting candidate dies" but in the case in hand though Barrister Taj Muhammad Khan Langah was a validly nominated candidate at the time of his death but he was not a contesting candidate. As in accordance with the Representation of the People (Condutt of Election) Rules, 1977 the Returning Officer under Section 15 of the Act prepares a list of validly nominated candidates in Form IV as per Rule 6 and a list of contesting candidates is prepared in accordance with Rule 7 of these Rules in accordance with sub-section (4) of section 16 upon Form-V. According to the schedule of the election Barrister Taj Muhammad Khan Langah died even before the date of preparation of list of contesting candidates, therefore, due to his death his name was not entered in the list of contesting candidates. In accordance with Section 18 of the Act, the prayer for deferment of election made by the petitioner before the Returning Officer was declined by the Returning Officer.
9. Against this factual and legal position learned counsel for the petitioner remained unable to substantiate his arguments that even if Barrister Taj Muhammad Khan Langah died before the withdrawal date fixed in the schedule for the nomination papers, his name should have been entered in the list of contesting candidates and the Returning Officer to defer the election. So far as the case law with regard to maintainability of the Constitutional Petition by the learned counsel for the petitioner is concerned, there is no cavil to that principle but so, far as case law with regard to entering the name of Barrister Taj Muhammad Khan Langah in the contesting candidates list is concerned, the case law relied by the learned counsel is not with regard to the point in issue, therefore, same is not helpful to the petitioner.
10. In this view of the matter, I am clear in my mind that when a candidate dies before the preparation of list of contesting candidates, the election cannot be deferred, in accordance with Section 18 of the Representation of People Act, 1976, it can only be deferred if a contesting candidate dies. As Barrister Taj Muhammad Khan Langah was not a contesting candidate at the time of his death, therefore, the decision of the Returning Officer is in accordance with law and rules made therein. In this view of the matter, I see no scope to exercise extra ordinary jurisdiction in favour of the petitioner. Resultantly, when no case for interference by this Court has been made out, therefore, both these petitions stand dismissed.